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The Citizens Assembly Proposals: A Draft Bill

Lawyers for Choice has produced a draft bill that gives effect to the Citizens’ Assembly’s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly’s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members’ and not those of Lawyers for Choice.

Regrettably, the Assembly’s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.

In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law.

We welcome the Citizens Assembly’s recommendation that abortion be available on request up to 12 weeks, and on socio-economic and health grounds up to 22 weeks. However, we are concerned that the Assembly process did not always give members the opportunity to consider international best practice in the drafting of abortion legislation. To this end we note:

The Assembly has recommended making abortion available predominantly only in exceptional cases. ‘Exceptions-based’ legislation can stigmatise abortion by treating it as being different to other forms of medical care. It imposes burdens on pregnant people to establish that their abortions are ‘deserving’. It is also vulnerable to unduly conservative interpretation, which inhibits women’s access to services; for example, by distinguishing sharply between health and socio-economic grounds. We favour legislation which recognises and positively guarantees equal access to abortion care for all those who need it.

We recommend that no ‘rape ground’ should be included in any legislation. In other jurisdictions, accessing abortion on grounds of rape requires women to ‘prove’ their rape to the satisfaction of medics, police or courts. Such requirements reinforce damaging myths about rape victims’ credibility and lead to trauma and delay. Instead, the Oireachtas should ensure that other broader grounds (e.g. risk to health) can meet the needs of those pregnant through rape.

We do not support a specific disability ground short of fatal foetal abnormality. Its inclusion is stigmatising. Again, care should be taken to ensure that other grounds are drafted appropriately to ensure that they can meet the needs of those unable to continue a pregnancy after a diagnosis of severe foetal anomaly. The state is reminded of its international obligations to provide appropriate social and economic support, information and medical care to those in this position.

We regret that the Assembly’s recommendations include language from the case-law generated by the 8th Amendment e.g. ‘unborn’ and ‘real and substantial risk’ to life. These restrictive legal concepts have no place in Irish law once the Amendment is repealed or replaced and are unhelpful for medical practitioners.